550 F.

2d 726

Walter J. MEYER, Plaintiff-Appellant,

v.
Louis J. FRANK, Commissioner of Police, Nassau County
Police
Department, and Christopher Quinn, Trial
Commissioner and Inspector, Nassau
County Police Department,
Defendants-Appellees.
No. 66, Docket 76-7172.

United States Court of Appeals,

Second Circuit.
Argued Oct. 22, 1976.
Decided Jan. 12, 1977.

Ira Leitel, New York City (David B. Ampel, New York City, on the
brief), for plaintiff-appellant.
Joseph A. Demaro, Deputy County Atty. of Nassau County, Mineola, N.
Y. (James M. Catterson, Jr., County Atty. of Nassau County, Natale C.
Tedane, Senior Deputy County Atty., and Kenneth P. Morelli, Law Asst.,
Mineola, N. Y., on the brief), for defendants-appellees.
Before SMITH, OAKES and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:

I.

The question presented on this appeal is whether in a civil rights action under
Sections 1983 and 1985 the applicable three year New York statute of
limitations should be tolled during the period plaintiff pursued a remedy in the
New York state courts. Under the circumstances of this case, we hold that it
should not. Accordingly, we affirm the judgment of the district court which
dismissed the complaint as time-barred.

Walter J. Meyer was a detective in the Nassau County Police Department (the
Department). On June 25, 1970 a Nassau County grand jury indicted him and
another detective for attempted first degree grand larceny. On January 1, 1972
a jury acquitted Meyer of this charge.

Before the criminal trial began, the Department conducted and concluded
administrative proceedings to dismiss Meyer. On July 2, 1970, Meyer was
charged with a violation of Department rules. The departmental charges were
based on the same conduct charged in the indictment. A departmental trial
initially was scheduled for November 30, 1970. Repeated adjournments, all
except one due to the unavailability of Meyer's counsel, resulted in its
postponement until April 22, 1971. On that date Meyer's counsel again was
absent. His substitute counsel requested another adjournment. The trial
commissioner, appellee Quinn, denied this request but informed Meyer that he
could stand mute. On the advice of his substitute counsel, Meyer did remain
mute while the Department presented its case. When the Department rested,
Quinn adjourned the trial until April 27 and informed Meyer that he could
present his case at that time. When the trial resumed on April 27, Meyer again
stood mute. Quinn found him guilty. On June 4, 1971, he was dismissed from
the Department.

Two months after his dismissal, Meyer commenced an Article 78 proceeding1

in the Nassau County Supreme Court to review the action which resulted in his
dismissal. His petition alleged various state law claims. It also alleged that the
Department's action in trying him without the assistance of counsel of his
choosing violated his federal constitutional rights to counsel and to confront
witnesses. On July 15, 1971 the Article 78 petition was dismissed by Justice
Pittoni of the Nassau County Supreme Court. The Appellate Division, Second
Department, affirmed without opinion on October 10, 1972, 40 App.Div.2d
760, 336 N.Y.S.2d 239 (2nd Dept.1972) (mem.), and denied Meyer's motion
for reargument on January 19, 1973. In July 1973 the New York Court of
Appeals denied leave to appeal.2

On June 6, 1975 Meyer commenced the instant civil rights action in the Eastern
District of New York.3 His complaint alleged that his subjection to a
departmental trial violated his Fifth Amendment privilege against selfincrimination and that his subsequent dismissal deprived him of the pursuit of
his calling without due process of law. On March 12, 1976 Judge Costantino
filed his opinion, 409 F.Supp. 1240, granting appellees' motion to dismiss the
complaint as barred by the applicable three year New York statute of
limitations. From the judgment entered the same day, this appeal was taken.

II.
6

An action brought under the federal Civil Rights Act is subject to the statute of
limitations the state courts would apply in an analogous state action.
Accordingly, the three year New York statute of limitations4 governs Meyer's
instant 1983 claim. Ortiz v. LaVallee, 442 F.2d 912 (2 Cir. 1971); Swan v.
Board of Education, 319 F.2d 56 (2 Cir. 1963).5 Since Meyer's selfincrimination and due process causes of action accrued no later than June 4,
1971, the date of his dismissal from the force, the instant civil rights action
commenced four years later is time-barred unless a tolling principle applies so
as to excuse the year's delay. Meyer urges us to create a toll for the period
during which he pursued a remedy in the state courts. Specifically, he urges us
to toll the twenty-three month period from August 1971 to July 1973 so as to
render the instant civil rights action timely.

It is well settled that the federal courts have the power to toll statutes of
limitations borrowed from state law in appropriate circumstances. Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 465 (1975); Holmberg v.
Armbrecht, 327 U.S. 392, 395 (1946); Moviecolor Ltd. v. Eastman Kodak Co.,
288 F.2d 80 (2 Cir.), cert. denied, 368 U.S. 821 (1961). We recently have
affirmed the applicability of this principle in the context of a 1983 cause of
action. Kaiser v. Cahn, 510 F.2d 282, 286-87 (2 Cir. 1974).

Whether to toll in a particular case has been stated in terms of whether

application of the borrowed state statute of limitations would frustrate the
policy underlying the federal cause of action asserted. Johnson v. Railway
Express Agency, Inc., supra, 421 U.S. at 465; Burnett v. New York Central
R.R., 380 U.S. 424, 426-27 (1965). The inquiry pursued in the cases, however,
is somewhat broader than this statement implies. In practice, resolution of the
tolling question involves striking a balance between protection of the
substantive federal policy under consideration on the one hand and protection
of the policy behind the statute of limitations on the other hand. The plaintiff's
conduct particularly his diligence in pressing his claim also is taken into
account. Johnson v. Railway Express Agency, Inc., supra, 421 U.S. at 465-67;
UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 708 (1966); Burnett v. New
York Central R.R., supra, 380 U.S. at 428; Blair v. Page Aircraft Maintenance,
Inc., 467 F.2d 815 (5 Cir. 1972).

The remedial policy underlying 1983,6 considered alone, would not be

impinged upon by applying the three year limitations period here. Since 1983
plaintiffs are not required to exhaust state remedies, Monroe v. Pape, supra note
6, at 183, federal relief was available to Meyer all along. In consequence, the

gravamen of his argument in support of a toll lies in federalism considerations

of a general species. His theory is that the strong federal interest in redressing
deprivations of constitutional rights manifested in 1983 conflicts with a
concomitant federal concern for encouraging the initial utilization of state
agencies and courts for the vindication of wrongs committed by the state's
agents. These can be accommodated, so the argument goes, only if a tolling
principle assures the potential state court litigant of the residual availability of a
1983 action. The Fifth Circuit adopted this reasoning in Mizell v. North
Broward Hospital District, 427 F.2d 468 (5 Cir. 1970), and tolled the period
during which a 1983 plaintiff had challenged an administrative ruling within
the agency and in the state courts.7
10

Meyer invites us to apply Mizell here. Assuming arguendo our agreement with
the result reached there, the history of the instant litigation forecloses
application here of the full force of the Fifth Circuit's reasoning. Meyer did not
restrict his Article 78 petition to claims grounded in state law. Alleged
violations of his Sixth Amendment rights to counsel and confrontation of
witnesses were at the core of his petition. This is not a case like Mizell where
the prior state court proceeding was directed at obtaining relief through an
action grounded solely in state law.8 Id. at 470-71, 474. The only thing Meyer
has held in reserve has been the federal court itself; federal law has played a
principal role all along. The result is that the policy of avoiding federal
interference with state affairs survives here in a diluted posture.III.

11

We turn now from the federal policy consideration to the other relevant
considerations, i. e. statute of limitations policy and Meyer's conduct of the
litigation.

12

The policy of repose behind the statute of limitations protects defendants "by
preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared." Order of Railroad Telegraphers v. Railway Express Agency, Inc.,
321 U.S. 342, 348-49 (1944). It also protects the courts by relieving "the
burden of trying stale claims when a plaintiff has slept on his rights." Burnett v.
New York Central R.R., supra, 380 U.S. at 428. Meyer's conduct is the sort
against which both of these considerations are directed.

13

Unlike Burnett, 9 where the plaintiff's cause of action was precisely the same in
two successive suits and the defendant could not have relied on the policy of
repose, this is a case where Meyer has prosecuted two different actions. Upon
the conclusion of the state court action, which included state and federal claims,
appellees hardly could be said to have been put on notice that an action in the

federal court grounded on a different constitutional theory would follow two

years later. The inference is just the opposite and brings to appellees' side the
policy of repose.10
14

Moreover, Meyer has slept on his rights "in a very real sense." Johnson v.
Railway Express Agency, supra, 421 U.S. at 466. In Johnson, limitations ran on
the plaintiff's 1981 action in the midst of his efforts to obtain statutory relief
from the Equal Employment Opportunity Commission. The Supreme Court
faulted his conduct on the ground that a 1981 action could have been brought
at any time after his cause of action accrued.11 Id. Lack of diligence weighs
even more heavily against Meyer. Not only might he have resorted to the
federal court in the first instance, but he also had eleven months after the New
York Court of Appeals denied leave to appeal in July 1973 before the three
year limitations period ran out. See UAW v. Hoosier Cardinal Corp., supra, 383
U.S. at 708.

15

We hold that the federalism considerations urged by Meyer are of insufficient

substance to outweigh the statute of limitations policy so directly brought to
bear by the facts of this case.12

16

Affirmed.
OAKES, Circuit Judge (dissenting):

17

I dissent.

18

I would follow Mizell v. North Broward Hospital District, 427 F.2d 468 (5th
Cir. 1970). There the Fifth Circuit held that pursuit of state administrative and
judicial remedies by a dismissed local government employee tolled the statute
of limitations applicable to the employee's later-filed action under 42 U.S.C.
1983. Judge Tuttle for the court reasoned that "under our system of federalism
aggrieved persons should be encouraged to utilize state procedures before
appealing to the federal courts . . . ," id. at 474; failure to toll the 1983 statute
of limitations while state remedies are being pursued would cause unnecessary
filings of 1983 actions and would defeat an "underlying purpose of the Civil
Rights Act," id.1 Two crucial premises upon which the Fifth Circuit based its
holding that state remedies are separate and independent from 1983 remedies,
and that federal courts, while in general applying state statutes of limitations to
1983 actions, have the authority and the obligation to create their own tolling
rules when necessary, id. at 473-74 have since been recognized as valid by our
circuit. Lombard v. Board of Education, 502 F.2d 631, 635-37 (2d Cir. 1974)

(federal claim under 1983 separate from state claim), cert. denied, 420 U.S.
976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); Kaiser v. Cahn, 510 F.2d 282, 28687 (2d Cir. 1974). In the latter case, in reference to a 1983 claim, we said:
19 may in applying federal law to a claim based on a federal statute prevent a result
We
that would substantially impair a valid federal interest. Thus a borrowed state statute
of limitations may be tolled in conformity with federal doctrine where the right is the
creature of federal statute, Holmberg v. Ambrecht, 327 U.S. 392, 66 S.Ct. 582, 90
L.Ed. 743 (1946) . . . .
20 think that civil rights claimants, as well as seamen are entitled to, in the words of
We
Mr. Justice Black "full benefit of federal law". Garrett v. Moore-McCormack Co.,
317 U.S. 239, 243, 63 S.Ct. 246, 87 L.Ed. 239 (1942).
21 sum, we do not feel that we are necessarily bound by the state's determination of
In
when its statute of limitations is tolled where the question arises in a civil rights
claim in the federal court.
22

510 F.2d at 287.

23

The majority distinguishes Mizell on the basis that appellant "did not restrict
his (state court) petition to claims grounded in state law." Majority op., ante at
729. But appellant did not make the same federal claim in state court as he
makes here; as the majority points out, "the core" of his federal claim in his
state petition was "(a)lleged violations of his Sixth Amendment rights to
counsel and confrontation of witnesses . . . ," id., while he here claims violation
of "his Fifth Amendment privilege against self-incrimination" and deprival of
"the pursuit of his calling without due process of law," id. at 728. The majority
says that "(t)he only thing Meyer has held in reserve has been the federal court
itself . . . ," id. at 729, ignoring the fact that he has also "held in reserve"2 his
Fifth Amendment and due process claims. The considerations set forth in
Mizell, Lombard and Kaiser should apply to all federal claims not asserted in
state court, regardless whether other federal claims were asserted in the state
action.

24

The district court in this case refused to consider Mizell because it viewed as
controlling the Supreme Court's decision in Johnson v. Railway Express
Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), a view
correctly rejected by the majority, majority op., ante at p. 730 n.11. Johnson
held that the filing of a Title VII charge with the EEOC did not toll the statute
of limitations applicable to a 1981 action. The Johnson case is readily
distinguishable from this one in two respects. First, concerns of federalism were

not implicated there, since both of plaintiff's avenues of relief were federal.
Second, the procedures under Title VII and 1981 were intended by Congress
to complement each other, 421 U.S. at 459, 95 S.Ct. 1716, and essentially the
same claims can be made in both types of actions. Here, by contrast, plaintiff's
two avenues of relief derive from different sources of authority and involve
entirely different claims, even though the same result (reinstatement) is being
sought in both forums. Since constitutional issues raised in the state proceeding
cannot be relitigated in the 1983 action, Lombard v. Board of Education,
supra, 502 F.2d at 636-37, the two forums are, with regard to federal
constitutional relief, mutually exclusive, whereas in the Johnson situation the
Supreme Court emphasized the nonexclusivity of the Title VII and Civil Rights
Act procedures, 421 U.S. at 459, 95 S.Ct. 1716.
25

I would hold that the statute of limitations applicable to Detective Meyer's

present claims under 1983 was tolled while he was seeking relief in the state
courts.

Pursuant to N.Y.Civ.Prac.Law 7801 (McKinney 1963)

On January 15, 1974 Meyer requested the Department to reconsider his

dismissal. The request was denied on April 9, 1974

Pursuant to 42 U.S.C. 1983 and 1985 (1970) and their jurisdictional

implementation, 28 U.S.C. 1343(3) (1970)

N.Y.Civ.Prac.Law 214(2) (McKinney Supp.1975) which includes actions "to

recover upon a liability, penalty or forfeiture created or imposed by statute. . . ."

We apply 214(2) to Meyer's 1985 claim as well. See generally Nevels v.

Wilson, 423 F.2d 691 (5 Cir. 1970) (per curiam); Wakat v. Harlib, 253 F.2d 59,
63-64 (7 Cir. 1958). Our conclusions below regarding the tolling of the
limitations period for the 1983 claim apply likewise to the 1985 claim

The purpose of 1983, as explicated by the Supreme Court in Monroe v. Pape,

365 U.S. 167, 173-74 (1961), is to provide a federal remedy for federal
constitutional rights where the remedy afforded by state law is either inadequate
or unavailable as a practical matter

The Fifth Circuit held:

"(It) is clearly within the purpose of the Civil Rights Acts to encourage
utilization of state administrative and court procedures to vindicate alleged

wrongs under a state-created cause of action before requiring a plaintiff to bring

his federal suit to prevent his being barred by a state statute of limitations." 427
F.2d at 474 (emphasis added).
8

We intimate no opinion as to how we would rule in a case indistinguishable

from Mizell

The plaintiff in Burnett began a timely FELA action in a state court only to
have it dismissed for improper venue. The FELA limitations period ran out in
the course of the state action. The Supreme Court held that the statute should
be tolled during the period of the pendency of the state action so as to allow the
plaintiff an action in the federal court. 380 U.S. at 428

10

Under Johnson v. Railway Express Agency, Inc., supra, it may be that the
factual question of whether the defendant was in a state of repose need be
considered only when, as in Burnett, the two causes of action are the same. In
other cases, an actual state of repose apparently may be presumed:
"Only where there is complete identity of the causes of action will the
protections (of the defendant's interests) suggested . . . necessarily exist and
will the courts have an opportunity to assess the influence of the policy of
repose inherent in a limitation period. . . ." 421 U.S. at 467, 468 n. 14.

11

The question in Johnson was whether the timely filing of a charge with the
EEOC tolls the applicable state limitations period for an action under 42 U.S.C.
1981 (1970). The Court held that it does not, relying on Congress' intent that
administrative proceedings under Section 706 of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e-5 (1970), and suit in court order 1981 be
"separate, distinct, and independent". 421 U.S. at 460-61, 465-66. See also
Electrical Workers Local 790 v. Robbins and Myers, Inc., 429 U.S. 229, 45
U.S.L.W. 4068 (U.S. Dec. 20, 1976). Johnson in no sense controls on the issue
now before us, for the question of federalism policy presented in this case was
not presented there. Nevertheless, we note the considerable weight Johnson
places on upholding statute of limitations policy. 421 U.S. at 463-67, and 467 n.
14

12

In view of our holding above, we find it unnecessary to reach appellees'

contention that Meyer's litigation of federal questions in his Article 78
proceeding bars the instant 1983 action on the ground of res judicata

In the Fifth Circuit Mizell v. North Broward Hosp. Dist., 427 F.2d 468 (5th Cir.
1970), remains good law, see Guerra v. Manchester Terminal Corp., 498 F.2d
641, 649 n.13 (5th Cir. 1974), despite some earlier concern about its demise,
see Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815, 821 (5th Cir. 1972)

(Tuttle, J., dissenting) (suggesting possibility of "sub silentio" overruling of

Mizell by majority). The case of Ammlung v. City of Chester, 494 F.2d 811,
816 (3d Cir. 1974), did criticize the "fashioning (of) federal tolling principles"
in Mizell, but this aspect of Mizell has already been approved by the Second
Circuit (without reference to Mizell ) in Kaiser v. Cahn, 510 F.2d 282, 286-87
(2d Cir. 1974). Ammlung, moreover, indicated that Mizell could be considered
sound on its "peculiar facts," facts also extant in this case: Mizell involved "the
utilization of state administrative procedures and the state courts to reinstate a
privilege revoked by the state," and "the plaintiff's success in having his (job)
reinstated at the state level would have obviated the need for a federal civil
rights action." 494 F.2d at 816
2

The majority's characterization of certain federal claims as being "held in

reserve" by litigants has a disapproving tone that I do not accept. Litigants have
a clear, unquestioned right to proceed with separate claims in state and federal
forums. Indeed, one inevitable consequence of the majority's decision today is
that state court litigants will hold many more issues "in reserve" for federal
court consideration